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Can an Affair Change How Property Gets Divided in a Divorce?

Apr 26, 2022 | Divorce, Property Division

Divorce proceedings in Houston, TX range from very straightforward to extremely complicated. One of the factors that will need to be worked out if it is brought to light is adultery. If you had an extramarital affair while you were married, it is important to speak with a divorce attorney for men. Evidence for an affair can change the outcome of the divorce, including the division of property, and you will want a lawyer who can protect your interests.

Can an Affair Change How Property Gets Divided in a Divorce?

Yes. When finalizing a divorce, courts can consider marital misconduct, including extramarital affairs. This can result in an unequal division of property, with the offender walking away with less than half of the community assets. Additionally, if the offending spouse qualifies for alimony, the affair might impact the amount he or she receives each month.

How Does Divorce Work?

At-Fault vs. No-Fault

In Texas, most divorces are no-fault, meaning that neither partner committed immoral actions which led to the dissolution. This option is popular because it is faster and more amicable. Accordingly, the process of finalizing a no-fault divorce incurs fewer legal fees. Divorcing couples will still need to demonstrate a reason for the divorce, such as:

  • Separate living arrangements
  • Irreconcilable differences
  • Confinement of one spouse to a mental health facility

Adultery is grounds for at-fault divorce, meaning that the court could decide that the affair in question ultimately caused the end of the marriage. In that case, you might be ordered to forfeit a disproportionate share of the assets. Other reasons for an at-fault divorce include cruelty, abandonment, and felony convictions. If your partner has accused you of being on the offending end of an at-fault divorce, he or she will need to submit proof.

Community Property

A big part of the divorce process is determining how to divide all real estate, personal possessions, financial assets, dividends, benefits, and debt. Texas is a community property state, which means that most of the property held between spouses is legally shared. Exceptions include property acquired before the marriage, inheritance, and gifts given exclusively to one spouse.

When a couple divorces, courts are instructed to order a “just and right” division of the assets. In the case of a no fault divorce in which both parties are able to support themselves, that might mean an equal division. However, courts consider the need for child support, whether or not one spouse qualifies for alimony, and any grounds for an at-fault divorce. When any of these issues factor into the divorce, a “just and right” division might mean that one partner gets a greater share of the community property.

How Does an Affair Affect Alimony?

Alimony, also referred to as spousal support, is the amount of money one spouse might be ordered to pay the other each month. To be eligible, the receiving spouse must prove that they have a reduced capacity to provide for themselves, that they are caring for a minor child who is disabled, or that they experienced domestic violence within two years of the divorce.

Extramarital affairs are not considered when determining whether or not one spouse is eligible for alimony. However, they can factor into the amount the offending spouse is ordered to pay, especially if the affair coincided with any domestic violence. On the other hand, if one spouse is eligible for alimony, that right might be waived if he or she had an affair.

How Does an Affair Affect the Division of Assets?

If your spouse claims that you had an extramarital affair, you might be facing an unequal division of assets. When determining how much each of you walk away with, the court will consider the affair and other factors including the length of your marriage, the need for alimony, the presence of children, and any grounds for an at-fault divorce which accompanied the affair.

The Definition of an Affair

In Houston, TX, divorce proceedings are worked out according to the Texas Family Code, which gives a vague definition of adultery. However, courts generally accept that voluntary sexual contact with a person other than your spouse is adulterous.

The Timing of an Affair

When facing divorce, many people make the mistake of starting a relationship before the disillusion is finalized. As long as you are still legally married, your partner can sue you for adultery even if you have already begun the divorce process together. That is one reason to speak with an attorney early on. He or she can make sure you are informed about how your behavior during the process will affect the ultimate outcome.

Proving the Affair

Filing an at-fault divorce based on an affair requires proof. The court will not allow the proceedings to progress on the basis of “he said/she said” arguments. However, your spouse does not need to submit footage of the actual affair taking place. It is enough to provide circumstantial evidence including:

  • Phone calls
  • Emails
  • Receipts from restaurants, gifts, or trips
  • Witness statements

It is important to note that if the evidence your spouse submits shows money being spent on the affair, the total amount could be deducted from your share of the assets. In addition to funds spent on vacations and gifts, courts will consider whether you have provided a home or a car for your extramarital partner.


Most divorces end in a settlement, rather than a trial. Your lawyer can handle communications between you and your spouse as you negotiate your division of assets outside of court. Having a lawyer will show your spouse that you are serious and will not give into baseless accusations.


If your case does go to trial, your lawyer will strengthen it with a nuanced understanding of family law. He or she will ensure that all documents are filled out according to the guidelines and that all evidence submitted meets legal requirements. Throughout the trial, your lawyer will provide professional legal representation, using convincing arguments in your favor and coaching you on how you should appear before the court.

Protecting Your Assets in Houston, TX

There is no denying that divorce can be messy. Working with the right attorney can help you avoid unnecessary drama while working to protect your assets. While an extramarital affair can affect the way community property is divided, the divorce process offers numerous opportunities to minimize the material damage. If you are facing a divorce, contact Skillern Firm to get in touch with an attorney who specializes in family law.